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As filed with the Securities and Exchange Commission on May 25, 2000
Registration Number 333-____________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
HORIZON ORGANIC HOLDING CORPORATION
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(Exact name of Registrant as specified in its charter)
Delaware 84-1405007
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6311 Horizon Lane
Longmont, Colorado 80503
(303) 530-2711
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(Address, including zip code and telephone number, including area code,
of Registrant's principal executive offices)
1998 Equity Incentive Plan
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(Full title of the plan)
Charles F. Marcy, Chief Executive Officer
HORIZON ORGANIC HOLDING CORPORATION
6311 Horizon Lane
Longmont, Colorado 80503
(303) 530-2711
- --------------------------------------------------------------------------------
(Name, address, including zip code and telephone number,
including area code, of agent for service)
Copies to:
Michael A. Sabian, Esquire
Shughart, Thomson & Kilroy, P.C.
1050 17th Street, Suite 2350
Denver, Colorado 80265
(303) 572-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price aggregate registration fee
per share (2) offering price(2)
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<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 750,000 shares $10.00 $7,500,000.00 $1,980.00
===================================================================================================
</TABLE>
__________________
(1) Being registered hereby are 750,000 shares of common stock, par value $.01
per share ("Common Stock"), of Horizon Organic Holding Corporation (the
"Registrant"), issuable pursuant to the Registrant's 1998 Equity Incentive
Plan (the "Plan"). This Registration Statement shall also cover any
additional shares of Common Stock which
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become issuable under such Plan by reason of any stock dividend, stock
split, recapitalization or any other similar transaction effected without
the receipt of consideration which results in an increase in the number of
the Registrant's outstanding shares of Common Stock.
(2) Estimated solely for the purpose of determining the amount of the
registration fee in accordance with Rule 457(h) and (c). The proposed
maximum offering price per share was determined based upon the average of
the high and low prices per share of the Registrant's Common Stock on May
23, 2000, as reported on the NASDAQ National Market System.
2
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I will be sent or
given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933,
as amended (the "Securities Act"). In accordance with the instructions to Part
I of Form S-8, such documents will not be filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement (the
"Registration Statement") or as prospectuses or prospectus supplements pursuant
to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
This Registration Statement incorporates documents by reference which are
not presented herein or delivered herewith. Horizon Organic Holding Corporation
(the "Registrant") will provide without charge to each person to whom this
Registration Statement is delivered a copy of any or all of such documents which
are incorporated herein by reference (other than exhibits to such documents
unless such exhibits are specifically incorporated by reference into the
documents that this Registration Statement incorporates). Oral or written
requests for Registrant's documents should be directed to Horizon Organic
Holding Corporation, 6311 Horizon Lane, Longmont, Colorado 80503, Attention: Don
Gaidano, Chief Financial Officer, telephone number (303 ) 530-2711.
This Registration Statement registers additional securities of the same
class as other securities for which a registration statement has been filed on
Form S-8 for the same employee benefit plan. That registration statement number
333-64905 was filed September 30, 1998 and the contents thereof are hereby
incorporated by reference.
The following documents filed by the Registrant with the Commission are
incorporated by reference in this Registration Statement:
a. The Registrant's latest Annual Report on Form 10-K for the year ended
December 31, 1999.
b. All other reports filed by the Registrant pursuant to sections 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since
the end of the fiscal year covered by the annual report referred to in
(a) above.
c. The description of the Registrant's Common Stock which is contained in
the Registrant's Registration Statements filed under Section 12 of the
Exchange Act, including any amendments or reports filed for the purpose
of updating such descriptions.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment to the Registration Statement which indicates that all of
the shares of common stock offered have been sold or which
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deregisters all of such shares then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein (or in any other subsequently filed document that also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part of
this Registration Statement. This Registration Statement is qualified in its
entirety by the information and financial statements (including notes thereto)
appearing in the documents incorporated by reference, except to the extent set
forth in the immediately preceding statement.
Item 4. Description of Securities.
Not applicable. The Registrant's Common Stock has been registered pursuant
to Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act").
The Registrant's Amended and Restated Certificate of Incorporation provides
for the elimination of liability for monetary damages for breach of the
directors' fiduciary duty of care to the Registrant and its stockholders. These
provisions do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of non-
monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant, for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for any
transaction from which the director derived an improper personal benefit, and
for payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Delaware law. The provision does not affect a director's
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
directors and executive officers pursuant to which the Registrant has agreed to
indemnify each director and executive officer against expenses and losses
incurred for claims brought against them by reason of their being a director or
executive officer of the Registrant, and the Registrant maintains directors' and
officers' liability insurance.
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Item 7. Exemption from Registration Claimed.
Not applicable. No restricted securities have been or will be reoffered or
resold pursuant to this Registration Statement.
Item 8. Exhibits.
The exhibits to the Registration Statement are listed in the Exhibit Index
elsewhere herein. The Plan has been submitted to the Internal Revenue Service
("IRS") and all appropriate amendments to the Plan shall be submitted to the IRS
in a timely manner and the Registrant will make all changes required by the IRS
in order to qualify the Plan.
Item 9. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii)
shall not apply if the information required to be included
in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) To remove registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
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(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Exchange Act; and, where interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that
is specifically incorporated by reference in the prospectus to provide
such interim financial information.
(4) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item
6, or otherwise, the Registrant has been advised that in the opinion
of the Commission such indemnification is against public policy as
expressed in the Exchange Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceedings) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Exchange Act and will be governed by the final
adjudication of such issue.
[END OF PAGE]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURES
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Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Longmont, State of Colorado, on May 25, 2000.
HORIZON ORGANIC HOLDING CORPORATION
Registrant
By /s/ Charles F. Marcy
---------------------------------------------
Charles F. Marcy, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
The undersigned directors and officers of Horizon Organic Holding
Corporation each hereby constitute Charles Marcy and Don Gaidano, and each of
them, as our true and lawful attorneys with full power to sign any and all
amendments to this Registration Statement in our names and in the capacities
indicated below to enable Horizon Organic Holding Corporation to comply with the
requirements of the Securities Act, as amended, and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, on any and
all amendments to this Registration Statement.
<TABLE>
<CAPTION>
Signature and Name Capacity Date
- ------------------ -------- ----
<S> <C> <C>
Signature Title Date
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/s/ Thomas D. McCloskey, Jr. Chairman of the Board of Directors May 25, 2000
- ------------------------------
Thomas D. McCloskey, Jr.
/s/ Charles F. Marcy President, Chief Executive Officer, and Director May 25, 2000
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Charles F. Marcy (Principal Executive Officer)
/s/ Don J. Gaidano Vice President, Finance & Administration May 25, 2000
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Don J. Gaidano Chief Financial Officer, and Treasurer
(Principal Financial and Accounting Officer)
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Paul B. Repetto Director May 25, 2000
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Paul B. Repetto
/s/ Mark A. Retzloff President, International, and May 25, 2000
- ------------------------- Director
Mark A. Retzloff
/s/ Marcus B. Peperzak Vice Chairman, Director May 25, 2000
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Marcus B. Peperzak
/s/ Barnet M. Feinblum Director May 25, 2000
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Barnet M. Feinblum
/s/ Clark R. Mandigo II Director May 25, 2000
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Clark R. Mandigo II
/s/ Richard L. Robinson Director May 25, 2000
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Richard L. Robinson
/s/ G. Irwin Gordon Director May 25, 2000
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G. Irwin Gordon
/s/ Michelle Goolsby Director May 25, 2000
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Michelle Goolsby
</TABLE>
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EXHIBIT INDEX
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Exhibit
Number Exhibit
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5.1 Opinion of Shughart Thomson &
Kilroy, P.C. regarding the legality
of the securities being registered
23.1 Consent of Shughart Thomson &
Kilroy, P.C. (included in Exhibit
5.1)
23.2 Consent of KPMG LLP
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Exhibit 5.1
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[OPINION OF SHUGHART THOMSON & KILROY, P.C.]
Board of Directors
Horizon Organic Holding Corporation
6311 Horizon Lane
Longmont, Colorado 80503
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to which this letter is attached as Exhibit 5.1
filed by Horizon Organic Holding Corporation, a Delaware corporation ( the
"Company"), in order to register under the Securities Act of 1933, as amended
(the "Act"), 750,000 shares of Common Stock, $0.01 par value per share (the
"Shares"), of the Company issuable pursuant to the Company's 1998 Equity
Incentive Plan, as amended (the "Plan").
We are of the opinion that the Shares have been duly authorized and upon
issuance and sale in conformity with and pursuant to the Plan, the Shares will
be validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an Exhibit to the Registration
Statement and to the use of our name in the reports or prospectus constituting a
part thereof.
Respectfully submitted,
SHUGHART THOMSON & KILROY, P.C.
Dated: May 25, 2000
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Exhibit 23.2
Consent of Independent Auditors
The Board of Directors
Horizon Organic Holding Corporation:
We consent to incorporation by reference in the registration statement on Form
S-8 dated May 25, 2000 of Horizon Organic Holding Corporation of our report
dated March 7, 2000, relating to the consolidated balance sheets of Horizon
Organic Holding Corporation and subsidiaries as of December 31, 1999 and 1998,
and the related consolidated statements of operations, stockholders' equity and
comprehensive income, and cash flows for each of the years in the three-year
period ended December 31, 1999, which report appears in the December 31, 1999,
annual report on Form 10-K of Horizon Organic Holding Corporation.
KPMG LLP
Boulder, Colorado
May 25, 2000
